In April 2018, new legislation pertaining to judicial reform came into force in Poland. The President of Poland, Andrzej Duda, as well as the Polish Law and Justice party (PiS), celebrated it as a victory for the effectiveness of the Polish judicial system. Yet this judicial reform put Poland right into the crosshairs of the European Court of Justice (ECJ).

In 2015, a legislative amendment was established that allowed the PiS-controlled parliament to replace five constitutional court judges. The following year, the European Union (EU) launched an inquiry into whether these changes violated the EU’s democratic standards. This inquiry, executed under the new rule of law framework of the EU, was a legal measure that had never been implemented before. The inquiry eventually resulted in the European Commission beginning infringement proceedings, a process through which the ECJ makes its judgements. This leads us to 2018 in which Poland’s new legislation implemented two major policies. The first is that the legislation replaced the old National Council of the Judiciary, which was elected by judges and had the power to appoint justices to the Supreme Court, with a new council that was elected by the parliament. The second major policy mandated retirement for Supreme Court justices over the age of 65, allowing for the new National Council of the Judiciary to appoint new justices. Following this, 44 supreme court seats were vacated and the PiS had the power, due to the new law that was passed, to appoint 27 of these seats. This development resulted in the ECJ ruling that Poland must halt the enforcement of its new retirement age law.

President Duda has focused his agenda on breaking away from the EU in many areas, including immigration, by rejecting asylum quotas, and freedom of speech, by making it illegal to accuse Poland of complicity in the Holocaust. This has all correlated with an approval rating of 65% for his administration in 2018. While the president’s approval rating remains relatively high, there are many opposition groups within the country attempting to stop the judicial changes. For instance, in May of this year, Civic Platform, the country’s main opposition party, brought out 50,000 demonstrators onto the streets of Warsaw in protest of the government distancing itself from the EU and disrupting the country’s democratic institutions.

The PiS and its supporters argue that the judiciary of Poland is ineffective and that since the judiciary is not elected by the people, it should not be able to interpret Poland’s laws. The Party also argues that the courts are controlled by Communist holdovers from the Cold War era, and that such holdovers could only be removed through the new law, yet little evidence supports this claim.

In October 2018, the ECJ released a statement summarizing its ruling on the issue. From the perspective of the EU, Poland’s judicial restructuring represents a complete rejection of the EU’s democratic principles and the guidelines on which Poland was accepted into the EU.

If Poland rejects the ECJ ruling on the issue, financial penalties could ensue, which would restrict aid to Poland. President Duda has vowed to maintain the status quo and the Polish people continue to support their president. Polls conducted in May 2017 indicate that 38% of those surveyed believe in prosperity being more important than democratic institutions and 32% the other way around. However, the punishments that the EU implements through the ruling could impede the economic mandate that the PiS promised, providing the Polish people with a reason to oppose the EU. There has been no official decision on what will happen once the ECJ comes to a decision about the consequences of Poland failing to comply with its ruling, but the result would likely leave Poland without a vote in the EU parliament.

Should the EU give ground on one case of dissent, its credibility as an organization could be called into question, as Poland is only one of many countries that currently threatens unity within the EU. Likewise, the EU has recently been facing revolt on all fronts. Rising populism in several countries has resulted in the rejection of EU demands in Italy, Austria, Hungary, and the Czech Republic, with such rejection being supplemented by legal action as it has in Poland. Bulgaria and Romania, recent member state additions to the EU, have been restricted from being a part of the Schengen Area, a zone in which border controls for travel between EU member states have been abolished. This occurred mainly due to France and Germany’s continued opposition to the anti-corruption policies of both Bulgaria and Romania that has strained the latter countries’ relationship with the EU through the present day. Notably, there is a legal obligation for Bulgaria and Romania to enter the Schengen Area with the European Commission clearing their accession. Moreover, negotiations over the United Kingdom’s bid to leave the EU may soon come to a close, which could open the floodgates for more to follow. This political fragmentation has encouraged states such as Poland to take a more intransigent approach toward their dealings with the EU Commission.

The conflict between the the ECJ and Poland seems to have cooled off as of late due to pledges by the Polish government to reinstate its judicial status quo. However, the ECJ still hasn’t moved to end legal proceedings against Poland because of the Law and Justice party’s unwillingness to address other areas of the judicial reform.

The crisis in Poland is not new, but as tensions across Europe have risen so has the significance of this legal flashpoint. The future of Poland’s relationship with the EU remains uncertain and a bold shift in the strategies of policymakers in both Brussels and Warsaw will likely be necessary if fractures within the EU are to be mended.